Devereaux v Kyriazis

[2020] NSWLEC 1048

Land and Environment Court

New South Wales

Medium Neutral Citation:	Devereaux v Kyriazis [2020] NSWLEC 1048
Hearing dates:	23 January 2020
Date of orders:	04 February 2020
Decision date:	04 February 2020
Jurisdiction:	Class 3
Before:	Clay AC
Decision:	The Court orders: (1) Grant leave to Mr Tony Kyriazis to appear for the Respondents. (2) Order the Respondents to remove the encroachment of the shed as identified in pink highlight in the survey report of C&A Surveyors dated 3 June 2019 a copy of which is Annexure A hereto by 21 February 2020. (3) Note the agreement between the parties that the shed referred to in Order 2 will be removed to be not less than 7 cm clear of the boundary by 21 February 2020. (4) Order the Respondents to remove the encroachment of the verandah and eaves and gutters as identified in pink highlight in the survey report of C&A Surveyors dated 3 June 2019 a copy of which is Annexure A hereto by 21 February 2020. (5) Reserve costs.
Catchwords:	DEVELOPMENT APPLICATION – hearing – consent orders – orders
Legislation Cited:	Encroachment of Buildings Act 1922 Land and Environment Court Act 1979 Land and Environment Court Rules 2007
Category:	Principal judgment
Parties:	Christopher Devereaux (First Applicant) Bailan Devereaux (Second Applicant) Dimitrios Kyriazis (First Respondent) Sofia Kyriazis (Second Respondent)
Representation:	Counsel:    D Campbell (Solicitor) (Applicants) T Kyriazis (Agent) (Respondents)   Solicitors:    Bannerman Lawyers (Applicants)
File Number(s):	2019/225628
Publication restriction:	No

Judgment

1. COMMISSIONER: The Applicants and the Respondents are neighbours in Marrickville. It appears that for some years there has been an unfortunate debate between them over the eaves and gutters of the Respondents’ dwelling house and a shed on their land. It is that debate which was regrettably never resolved and brings these neighbours to this Court.

2. This is an application pursuant to s 3(1) of the Encroachment of Buildings Act 1922 (EB Act) seeking the removal of certain encroachments from the Respondents’ property which are said to be on the Applicants’ property.

3. This Court has exclusive jurisdiction in respect of applications under the EB Act (ss 2, 3(1)), and the application falls within Class 3 of the Court’s jurisdiction, s 19(c1) of the Land and Environment Court Act (Court Act). The jurisdiction may be exercised by a Commissioner under s 33(1) of the Court Act.

4. A pre-trial directions hearing took place by telephone on 21 January 2020. Mr Campbell appeared for the Applicants and Mr Tony Kyriazis, the son of the Respondents sought leave to appear for his parents. Although there was no authority from the Respondents authorizing their son as their agent, I granted leave to Mr Tony Kyriazis to appear for the Respondents at the mention only.

5. The discussion which ensued led me to the view that settlement was likely but that further discussions needed to occur. I emphasised to Mr Tony Kyriazis that his parents would benefit from legal advice, but that if he wished to appear at the hearing then he would need to obtain their authority so to do, and referred him to the Court’s web site.

6. Happily, albeit belatedly, the parties reached a resolution as to orders to be made, but for the question of costs. The agreement was only reached the day prior to the hearing date. At the hearing Mr Campbell appeared for the Applicants but there was no appearance by the Respondents. Mr Campbell purported to mention their appearance and their consent to proposed orders, relying upon communications with the Respondents’ son, Mr Tony Kyriazis. The Respondents themselves are elderly and Mrs Kyriazis is presently unwell and bedbound.

7. There was however, no authority for Mr Tony Kyriazis to appear for his parents and it was not entirely clear whether the Respondents themselves were prepared to consent to the proposed orders, as distinct from the consent to orders by Mr Tony Kyriazis, their son. The proposed orders also required some redrafting to properly accord with the EB Act.

8. In the circumstances I adjourned the matter for mention on 30 January 2020, such mention to be vacated in the event the appropriate documents were provided to the Court beforehand. On 28 January 2020 Consent Orders signed by the Solicitor for the Applicant and Mr Tony Kyriazis were filed, as was an authority to Mr Tony Kyriazis to appear as agent for the Respondents signed by Mr Kyriazis senior, and an affidavit of Mr Tony Kyriazis.

9. Mr Tony Kyriazis deposed to explaining to his parents the proposed orders and having their consent to enter the proposed orders. He also annexed a medical report from Mrs Kyriazis’ treating general practitioner indicating her very poor state of health and inability to attend Court.

10. Having regard to the affidavit of Mr Tony Kyriazis, and the authority to act as agent, I am satisfied that it is appropriate to grant leave to Mr Tony Kyriazis to appear as agent for the Respondents: s 63 of the Court Act; Rule 7.7 of the Land and Environment Court Rules 2007.

11. Unlike the overwhelming majority of cases determined by Commissioners, this is litigation between landowners who are private citizens. There are no questions of public law and no government body is a party. The parties having reached an agreement on the substantive matters in issue, it is not for me to determine whether the orders are appropriate, but rather simply be satisfied that the Court has power to make such orders.

12. The Court has power to order the removal of an encroachment under s 3(2)(c) of the EB Act, and so I have power to make the orders sought.

13. The parties seek that costs be reserved. The Applicant has indicated that they propose to make an application for costs, and will do so by motion and supporting affidavit. The Court may make such order as to payment of costs, charges and expenses as it may deem just in the circumstances, (s 14 of the EB Act). As the power of a Commissioner is in relation to proceedings under the EB Act, it would appear that a Commissioner has power to determine an application for costs under s 14 of the EB Act. However I will leave it to the Chief Judge to allocate the hearing if and when an application for costs is made.

14. Accordingly I make the following orders:

1. Grant leave to Mr Tony Kyriazis to appear for the Respondents.

2. Order the Respondents to remove the encroachment of the shed as identified in pink highlight in the survey report of C&A Surveyors dated 3 June 2019 a copy of which is Annexure A hereto by 21 February 2020.

3. Note the agreement between the parties that the shed referred to in Order 2 will be removed to be not less than 7 cm clear of the boundary by 21 February 2020.

4. Order the Respondents to remove the encroachment of the verandah and eaves and gutters as identified in pink highlight in the survey report of C&A Surveyors dated 3 June 2019 a copy of which is Annexure A hereto by 21 February 2020.

5. Reserve costs.

…………………………..

P Clay

Acting Commissioner of the Court

Annexure A (108 KB, pdf)

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Decision last updated: 11 February 2020